Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-12-23
THE HIGHER COURTS.
Synopses OF Decisions Rendered at Che
Present Tyler Sitting Of the
Higher Courts OF Texas.
Gases Reversed and EemandeG, Dismtssec,
Reformed and . Misunderstanding
In Long Delayed Cases.
Commission of Appeals.

where the land is situated, is personal
privilege, and plsintif not having pleaded
in abatement to the jurisdiction Of the
court in this case, will be held to have
waived his right of being sued for the land
in the county where it is situated. 2. II
is well established rule that this
court will not disturb the findings of the
trial court when there is conflict In the
evidence. and the evidence supports the
conclusion reached, but in this case,
where the source and knowledge of de-
PENDANTS witnesses Is explained and con-
trasted with that of the plaintiffs, there
is found no real conflict in the material
facts testified, as OF the knowledge OF the
witnesses. Appellees prove their title by
witnesses who swear to the best
Of their recollection and belief.
Appellant proves his title by testimony
plain and direct. This being the case,
we hold that the evidence does not sup
port the judgment Of the court below,
There being no question as to appellants
title, the Judgment will be reversed and
here rendered in his favor. Reversed and
rendered. Maltbie, p J.
Margaret Boone ct al. vs.. John Hulsey
ct al. appeal from Fannin. Trespsss to
try title. J.. The land board of Fannin
county adjudged that Daniel Davis was
married man, and issued to
him certificate for a league and
labor of land, and the courts cannot in
this suit re-exsmine the question and
ascertain whether the wife Of said Davis,
at the time OF her marriage to him, knew
that her former husband was then living,
and this after lapse of more than forty
years. 2. If Margaret Brown made
settlement with the administrator of the
estate OF Daniel Davis, and received per-
sonal property in satisfaction Of her in
terest, and acquiesced in said settlement
until the institution of this suit, she
would be estopped from disputing its
the effect that she did not know whether
Margaret Brown lived With another party
after her husbands death, but that it was
the common understanding that she did,
and there was much talk in the neishbor-
hood about 1.-THE came being read in
evidence over the objections of appellant,
was clearly calculated to prejudice the
rights OF appellant, and the court erred in
overriding exceptions hereto. Reversed
and remanded. Maltbie, P. j.
Gulf, Colorado and Santa Fe Railway
vs.. John Hedrick; appeal from Nc
Lehman. Suit for damages caused By an
overflow alleged to have been caused by
the defective construction Of appellants
roadbed. l. Where witnesses are per-
mitted to state the facts upon which
their conclusions are predicated IN regard
to arriving at an estimate of damages to
growing and immature crops, the trial
court should carefully and fully explain
to the jury the measure Of damages By
which they should be governed. Such a
charge was not given the jury in this case,
and the omission was error. Reversed
and rsmanded. MAltbie, P. J.
John H. Taylor ct 81. vs.. Fannie Lide
ct ell; appeal from E.stlsnd county.
The trenec rips Of the docket entries and
the execution with the endorsements
thereon purporting to be the docket and
fled papers of A. Stewart, justice of the
peace Of precinct No. of Galveston
county in 1851, certified to by j. W.
Moore, justice of the peace of Galveston
county, April 81, 1858, the certificate not
showing Of what precinct said MeoreNas
q justice, Is not admissible as evidence,
unless the record shows that said
Moore was the legal custodian of
said docket and papers, or
unless sufficient reason is shown
why proof of such fact cannot be made.
II the service was made by publication
and any presumption is to be INDUCED at
all it will be Gin collateral proceeding
to impeach judgment) in favor Of and
not against the Jurisdiction; it will be
that the service was upon O statutory
ground that can be upheld by law and
not upon ground that might or ought to
be declared insufficient; and in the alb
sence OF evidence to the contrary, appar-
ent from the proceedings before the JUS
tice, we are bound to presume
that the facts did exist to warrant the
jurisdiction. The Sheriff's return upon
an execution referred to the deed made
by the Sheriff, which describes the land
by metes and bounds. Held: The de-
scription Of the land is sufficient even If
the description in the return had been de-
fective. Reversed and remanded. Col
lard, j.
f B. Hord and J. v. Dgnowity vs., A.
P. Rivas; appeal from Bexar county.
SUIT for the recovery of 747 acres of land
Junior surveys cannot be made to control
and thus change the location of the older
grants when the latter contain in their
own calls the elements of complete de-
scription and Identity Under such cir
cumstances the junior surveys must be
located by the elder and not the elder by
the JUNIOR. Is. w. Rep, vol. No. y
Reversed and rendered. Collard, J.
S. Y. Collins ct al. vs.. James W. Kay
ct al; appeal from Witchita county; suit
in trespass TO try title. The jury were
instructed to find the value of the land
exclusive OF improvements, and aIso to
End the value of the use and occupation
in the event they found for plaintiff for
the land and in favor of defendants on
their claim for improvements. The
verdict contains no fading on the value
Of the land exclusive OF improvements,
nor on the value Of the use and occHpa-
ion. The verdict was for plaintiffs for
The land and for defendants for 5000 as
value of Improvements. Held: The
verdict is not responsive to the charge.
Reversed and remanded. Acker, J.
Supreme Court.
TYLER TEx Dec 90 -PIumyuer n. Il